Why Kenya's Attempt To Put Intellectual Property Rights In Its Constitution Is A Mistake

from the a-european-perspective dept

We recently published a post about Kenya's decision to put intellectual property rights into its proposed constitution, noting that this probably wasn't great for Kenya or other countries (who have likely been pushing Kenya to include those features). Amelia Andersdotter (who is supposed to be a member of the European Parliament, but still technically hasn't been given her seat due to what can only be described as bureaucratic incompetence on a continental scale) has written up a guest post, giving her analysis of why Kenya's move makes little sense

A review of the Kenyan constitution has been undergoing for a long
time, and only now has a final draft proposal for a new constitution
been released. But, despite the stated aims of freedom, democracy,
participation and the free exchange of ideas (pdf), the released draft
seems far from that ideal: Kenya is taking the Euro-American route to
heavier information restrictions, including more copyright, more
patents and more private knowledge monopolies, instead of keeping
their legal environment open to creativity, participation and sharing.

From the perspective of someone working with information policies in
the European Union, I can only see this harming Kenyan interests.
While many sub-Saharan African countries still have relative freedom
with regards to information sharing, this is being diminished by
pressure from external groups. Most prominently, American and European
corporations. Moving the Kenyan legislation towards the European will
shift power from Kenyan entrepreneurs to European big business.
Ownership concentration is one of the most harmful tendencies we have
seen with intellectual property rights in Europe.

What is more, I worry that this will damage my home turf. The
complexity of international trade has made it almost impossible for
any single country to pass any law into effect without it affecting
other nations, and as long as nations around the world keep changing
their laws to accommodate for restrictive innovation and creativity
policies, we will find it difficult to see new art, communication and
new businesses flourish.

History

Intellectual property rights are quickly morphing out of hand in the
European Union. They're used to motivate breaches of freedom of
speech, privacy of communication and proper judicial course. We've
seen proposals enter and get approved by parliaments that wish to send
people to jail or shut them off communication networks for listening
to music, and laws that have made it very difficult indeed to be (or
to remain) a small-scale entrepreneur.

These proposals are often pushed by very large and rich industries,
but not always to their own advantage. In the industries that rely the
most on patents, innovation is decreasing (pdf), and in the European Union
we have a unique experience with the Database Directive that, while
certainly creating more intellectual property rights, did not
stimulate European economical development (pdf) or the European
population. On the part of the music industry, they have managed to
make their customers resent them.

Big business does not always know what it ought to want, and if
legislators want to promote culture and innovation, my experience is
they should try and do that instead of trodding down roads that
already failed a trial and error test.

Kenya has previously only protected property in general, and not
intellectual property in particular, leaving it up to the legislator
to decide whether commodification of common cultural goods or
knowledge heritage is appropriate or not. And while European and
American politicians have started to discover copyright problems with
fair use, orphan works and common cultural heritages, Kenya and other
African nations have been urging for exceptions for education,
libraries, general dissemination, higher access to medicines and more
possibilities for small scale entrepreneurship (such as domestic
innovation not consisting of state of the art technology, but
adapted to the educational and economical development of a
local and regional market).

Those considerations are sadly lacking in the European economic
policies. While small and medium sized enterprises stand for 50% of
the European economy, and employ more than 90% of the European
population, in policy making they're made to be only worth their
existance to the extent that they can grow or be incorporated in
larger enterprises (pdf).

The tactics of making legislation that re-affirms the strong players'
place in the market may be useful in the short-term, especially for
the strong players. For economic development and the growth of a
domestic industry without previous strong actors, it can't be. The
effects may, in the worst case, make the Kenyan economy benefit the
European economy more than it benefits Kenyans.

From the European perspective, such a course by Kenya would signal a
success of the European legislative tactics and lock our economic
development in with the strong players as well. A need for
rejuvenation and adaption of the European economy to the time of
instantaneous information transfer would fall on its head and turn
European business practises into practises of channeling Kenyan gains
into themselves.

Collective rights

But what about the community-protecting parts of the constitutional draft?

The reformed constitution also aims at protecting the traditional
knowledge of Kenyan socities by introducing collective rights for
cultural heritage. It's certainly experimental. It's not present in
European constitutional culture to specify types of intellectual
property and their extent in constitutions. Creating collective
intellectual property rights hasn't been tried at all in Europe, to my
knowledge. It would likely be an ineffective way of protecting
Kenyan cultural heritage against trademarking and patenting in
European and American economies. Intellectual property law is still
based in the nation state so the Kenyan jurisdiction can't touch those
who wish to exploit their traditional knowledge or genetic resources.
Considering the few advantages I see with such a right, I would be
cautious about introducing it into a constitution.

The European experience to me is also that double intellectual
property rights protection is more likely to stay double, rather than
negate the effects of one or the other.

A Kenyan collective right is likely to be applicable only where a
European company with a trademark or patent in Europe is active also
on Kenyan soil, or to the extent that the Kenyan collective can
withstand law suits. Neither scenario is likely, and once again, from
where I'm standing, keeping the information flows as open as possible
is that which will bring the greatest remedies to the cultural robbery
plight.

Conclusion

Intellectual property law is still based in the nation state, but is
very much shaped globally. A reform in one part of the world does not
go without consequences in other parts, but, contrary to what some may
imagine, the effects are rarely beneficial to either party.

An approval of the intellectual property rights provisions in the
Kenyan constitution could come to be an example of that.

At best, they will not benefit European and American industries so
much that they completely strangle Kenyan innovation, and they will
not lock Europe and America on the path to democratic failure induced
by our own intellectual property law reforms. At worst, and as often
happens, a law reform in Kenya will create a precedent for reform in
the entire East-African region, and become part of a global web that
will lock in East-Africa, Europe and the Americas in an
information policy of law suits and power concentration, harmful to
creativity as well as innovation.

Hopefully, I have provided a European perspective that may make Kenyan
policy makers consider the implications of reforming the constitution
in this way one more time.

Now imagine someone with the power to wipe out that entire chart, the chart shows at least 5 generations of remixes that didn't come from the original but from the remixes that got remixed again and again and again, all of that is impossible with copyright.

Very good article showing what happens when people don't use copyright or can't use it to stop something.

Creativity explodes, people used vocaloid to create parodies and then someone came along and created a tool to make it easy to people to create characters, then people remixed the crap out of one music. All original works by some definitions.

this post is exactly why techdirt is one of the most misleading sites on the internet. why you ask?

Amelia Andersdotter, born August 30, 1987 in Enköping, is a Swedish politician and Member of the European Parliament (MEP), elected on the Pirate Party list in the 2009 election.

asking for an opinion from a pirate party member on ip rights is just not right. more importantly, failing to disclose this little tidbit up front makes mike and techdirt look like they are trying to slide a fast one past you all. are you guys all that dumb?

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asking for an opinion from a pirate party member on ip rights is just not right. more importantly, failing to disclose this little tidbit up front makes mike and techdirt look like they are trying to slide a fast one past you all. are you guys all that dumb?

So just like all the regular readers you recognized her name, so what's the big problem?

And it's funny that you'd be saying all that considering how often you quote industry information as if it's neutral. Pot, kettle?

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the problem isnt the position (i have no comment on the position) the point is that a guest poster with significant political standing should not be hiding their affiliation. why does mike feel no need to mention her pirate party membership (and that she is one of their elected officials), especially considering how much he tap danced around it in the intro?

this is the sort of thing that mike would absolutely crucify "the other side" for. it is an omission on the largest scale, pretty much to the level of an attempt to be misleading.

a member of the pirate party should be noted as such. failure to mark a what is a political statement as such is misleading and borderline dishonest.

now we get to ask the next question, which is "did the pirate party pay for this to be written and placed on this blog"? see how the questions can easily start? it isnt astroturfing, but it sure does smell like rotting garbage.

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Huh? I guess I automatically assumed that Amelia Andersdotter was the Amelia Andersdotter from this post.

(It would probably make sense to link to that post and/or mention the party affiliation though; I'm quite willing to believe that this was more of a "THE Amelia Andersdotter needs no introduction" in Mike's mind rather than some sinister plot though...)

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you still get that wrong. it is amazing how simple minded you are, considering you are a paid troll.

the point of "dont debate the person" is that if an argument because only about who the person is, and not about their content, then you have an issue. however, knowing about the person making the statement is different from debating the person.

in this case, there are so many nasty little sins going on its beyond understands how mike could miss it. giving posting space to a political party is a bad idea, and worse, giving it to them without crediting them is insulting to the reads of this blog.

in declaring astroturfing, mike specifically debated the people, and making it clear who they are. it is debating the people and not the ideas. yet it would seem that outing an the cria involvement in something is okay, but forgetting to mention that a major post on the blog is from a member of the pirate party is somehow okay?

i didnt even debate the positions (or the person for that matter) just brought up what i think is a serious omission that could change the way the story is read. that the pirate party member tries to pass it off as the "european view" is disgusting, as it is not the european view but a very narrow view from a single elected official on an anti-ip platform.

its disgusting and dishonest, mike knows it, and he is probably incredibly embarrassed that he got caught.

This is the kind of goofy post that Techdirt constantly passes for analysis in IP.

First - the arrogant policy maker problem: I don't understand it therefore everyone else is stupid. Sure - large economic interests, filled with experienced business people - don't know what's in their own best interests - but government, law professors and lobbyists do? Markets, which are supported by private property, are proven to be smarter than nearly any a priori attempt to tinker, design, or reorder them. Compare the post-world war ii russian economy with the american one. Markets are democratic trust individuals to look out for their own self-interests. Give me a property right and i'll fix my house - take it away and the neighbors might decide that we're all better off if they walk across my lawn and peek into my bedroom. The anticopyright movement thinks record company executives are stupid. I assure you - they are not.

Second - the "it follows, therefore it was caused by" fallacy. innovation (by what measure?) was down, so greater IP must be responsible. How about weak economy? How about increased piracy? How about a ton of things we haven't even analyzed. I got out of bed and then the sun came up. Definitely my getting out of bed caused the earth to revolve.

Third - the conflation of copyright with patent. COPYRIGHT DOES NOT PROTECT IDEAS. Read Section 102(b) of the copyright act. It protects expression. The antiproperty movement wants to conflate them so they can take patent concepts and criticize copyright. Patent is different - and complicated - but the "innovation" criticisms simply don't apply to copyright. If you want people to spend their days and nights doing analysis, criticism, journalism and making art - then they need a way to get paid. How about if we told policymakers that they should work for free, and then, at the end of the session, we'll take up a collection and see if they did anything worthwhile that we feel like paying for (and not free-riding on).

There was a post last week that said cited a paper that claimed that even though IP rights had increased, investment in IP creation had gone down. The authors - Harvard professors - cited copyright term extension for the proposition that IP rights had increased. This is the weatherman who is predicting a snowstorm when its 100 degrees outside. Piracy is rampant! Maybe there's a stronger connection with that than copyright term? Read and think about the paper before you cite it as conclusive proof!

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Before I bother responding, are you economically vested in your position, or are you open to counterargument and reconsidering some of your ideas? Because if it's the former I'd be wasting my time. If it's the latter, we could have an interesting conversation.

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Before I bother responding, are you economically vested in your position, or are you open to counterargument and reconsidering some of your ideas? Because if it's the former I'd be wasting my time. If it's the latter, we could have an interesting conversation.

Without revealing who pixelm is, I can tell you that he is *heavily* economically vested in his position. Beyond your normal everyday copyright defender.

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This is the kind of goofy post that Techdirt constantly passes for analysis in IP.

Always nice to hear from you pixelm.

First - the arrogant policy maker problem: I don't understand it therefore everyone else is stupid.

That's not what anyone said.

Sure - large economic interests, filled with experienced business people - don't know what's in their own best interests - but government, law professors and lobbyists do?

Again, that's not what people are saying. We know that people in your position know that if you can get the gov't to grant you ever greater monopoly powers it is easier to accumulate profits -- but that's at the expense of society as a whole (for which copyright is supposed to benefit). Arguing that those who stand to benefit most from gov't monopolies should set the policy on them is rather daft, don't you think?

Markets, which are supported by private property, are proven to be smarter than nearly any a priori attempt to tinker, design, or reorder them.

Yes! Indeed! So why do you seek to remove private property rights through copyright? Copyright is government interference in the market to benefit certain players -- such as the giant conglomerate who pays your salary. We're arguing in favor for actual free markets.

Compare the post-world war ii russian economy with the american one. Markets are democratic trust individuals to look out for their own self-interests. Give me a property right and i'll fix my house - take it away and the neighbors might decide that we're all better off if they walk across my lawn and peek into my bedroom.

Completely different situation and you know it, or you are being intellectually dishonest. The russian economy was based on redistribution of scarce goods. What we're talking about is making use of natural abundancies to create a true free market.

The anticopyright movement thinks record company executives are stupid. I assure you - they are not.

We're not saying they're "stupid." We're saying they're looking to abuse the system for their own benefit.

Second - the "it follows, therefore it was caused by" fallacy. innovation (by what measure?) was down, so greater IP must be responsible.

We've discussed nearly three dozen studies that have attacked this issue from a variety of different angles in order to separate out the variables. No one is arguing that a single correlatory study proves all. But we're seeing so much evidence across the board that *corrects for* other variables, that you're in denial if you think that people are suggesting otherwise.

If you'd like me to send you copies of these studies, feel free to email me.

How about weak economy? How about increased piracy? How about a ton of things we haven't even analyzed. I got out of bed and then the sun came up. Definitely my getting out of bed caused the earth to revolve.

Again, between all the studies, you can correct for most other variables and pull out what variables actually had an impact.

Third - the conflation of copyright with patent. COPYRIGHT DOES NOT PROTECT IDEAS. Read Section 102(b) of the copyright act. It protects expression. The antiproperty movement wants to conflate them so they can take patent concepts and criticize copyright.

We've discussed both issues quite separately and in great detail.

Meanwhile copyright is not supposed to protect ideas in theory, but in practice thanks to companies such as yours ever expanding copyright efforts, the barrier of what's an idea and what's an expression have been irretrievably blurred.

If you want people to spend their days and nights doing analysis, criticism, journalism and making art - then they need a way to get paid

Yes. But you are making the classic mistake -- one I have written about DIRECTLY in response to you in the past -- that the only way to get paid is via copyright. This is simply not true.

How about if we told policymakers that they should work for free, and then, at the end of the session, we'll take up a collection and see if they did anything worthwhile that we feel like paying for (and not free-riding on).

Strawman. No one has said that people shouldn't get paid. Just that they shouldn't rely on gov't handouts in the form of monopolies to make their money.

There was a post last week that said cited a paper that claimed that even though IP rights had increased, investment in IP creation had gone down. The authors - Harvard professors - cited copyright term extension for the proposition that IP rights had increased. This is the weatherman who is predicting a snowstorm when its 100 degrees outside. Piracy is rampant! Maybe there's a stronger connection with that than copyright term? Read and think about the paper before you cite it as conclusive proof!

Again, that was one study in a very long list of studies. And the point of that study was to show that the claims that with less copyright enforcement that there would be less creative output (as you, yourself claimed just one paragraph ago) was false. It did not set up that there was a causal relationship -- just that the claims of copyright being necessary to improve creative output were empirically false.

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Its hard to argue when you disagree about basic premises. Copyright is a property right and markets are based on teh exchange of property.

"Scarcity" is the basis for markets - when something is infinite, the price is zero. The fact that IP is a "nonrivalrous good" is a red herring. Intellectual property often has zero marginal cost, yet total costs can be quite large - whether the cost of developing a product (e.g., Microsoft Windows) or a copyrighted work (e.g., Iron Man 2). What IP does is create a market for the work - the creator can decide how to price and market the work or invention and consumers or intermediaries decide whether to buy it. If the market is competitive - which many of these markets are - and the markets work, then demand (consumers) and supply (creators) come into balance.

You propose abolishing the market for intellectual property works by decreeing that they all are in the public domain. Under such a theory, an otherwise large initial investment simply can't be recovered - cost goes to marginal cost of the medium (transmission or a cd, for example) - So why invest? I thought public or common ownership of property was precisely what command economies like the soviet union were trying to do.

It's often that we hear that people should move to new business models. Do you have any in mind? Would you like to invest in a movie and distribute it without copyright to see what happens? Musicians have tried it and been largely disappointed. Love to see the studies - because the concepts seem entirely divorced from actual experience or economic logic. My example is a fair one - if you agree that content creators are entitled to be paid for their works, why should they depend on volunteers to pay for it? No other part of the economy works that way.

It is TRUE that widespread distribution of all or part of a work can be promotional. People ship samples all the time. But I believe the best result is achieved when the copyright owner can decide what in the promotional self-interest

And it is unfair how you group the world into copyright maximalists and minimalists. The extent of copyright (term, fair use) is really a different axis than protection of copyrighted works (e.g., allowing the owner to protect the making of an exact copy for commercial gain). Is your beef with too extensive rights - because we have much in common there - or in enforcement of constrained ones?

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Its hard to argue when you disagree about basic premises. Copyright is a property right and markets are based on teh exchange of property.

History and the law disagrees with you, along side basic facts of the universe. The term intellectual property - an obvious ploy to confuse copyright law with property law - is a more recent invention, and one that is disingenuous.

"Scarcity" is the basis for markets

So is abundance. See: Every market, as they all benefit in some way from non copyrighted, non patented goods.

whether the cost of developing a product (e.g., Microsoft Windows) or a copyrighted work [...] What IP does is create a market for the work

Microsoft Windows is a copyrighted work. Kinda like how IP "created" a market for Linux in not doing anything to enforce artificial scarcity, apparently the basis of markets.

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Copyright is a property right and markets are based on teh exchange of property.

Copyright is not a property right at all, but a monopoly privilege. Your confusion on this point may be the cause of some of your recent legal problems.

"Scarcity" is the basis for markets - when something is infinite, the price is zero.

Your mistake is not taking this to the next level, and realizing that when the price of a resource goes to zero it often makes other things much more valuable. Your bigger mistake is in not capitalizing on the things it makes much more valuable.

The fact that IP is a "nonrivalrous good" is a red herring. Intellectual property often has zero marginal cost, yet total costs can be quite large - whether the cost of developing a product (e.g., Microsoft Windows) or a copyrighted work (e.g., Iron Man 2).

You're a lawyer, not an economist, but really, you should learn why total costs are meaningless in pricing.

Under such a theory, an otherwise large initial investment simply can't be recovered - cost goes to marginal cost of the medium (transmission or a cd, for example) - So why invest?

This is a simplistic and very wrong view of economics. Next time I'm in town, let me take you out for lunch and explain how the economics of bundling works. Google understands it. It might help you if you did as well.

You absolutely can recover your costs if the marginal cost is zero. You do so by selling the scarcities that the non-rivalrous/non-excludable good makes more valuable. Mr. Loews always pointed out that he sold seats, not movies. It's something that might be useful for you to recognize.

I thought public or common ownership of property was precisely what command economies like the soviet union were trying to do.

Not "common ownership" at all. It's about everyone being able to own their own copies. That is private ownership.

It's often that we hear that people should move to new business models. Do you have any in mind? Would you like to invest in a movie and distribute it without copyright to see what happens? Musicians have tried it and been largely disappointed.

I have yet to see a musician be disappointed after putting in place a smart business model. We've worked with numerous musicians and none have been "largely disappointed." Which musicians are you talking about?

My example is a fair one - if you agree that content creators are entitled to be paid for their works, why should they depend on volunteers to pay for it? No other part of the economy works that way.

Not volunteers at all. In fact, the opposite. I'm talking about selling a good *scarce* product on the market to people who want it.

You know what "no other part of the economy works" like? It's where you do something once and get to sit back and keep getting paid for that one piece of work.

And it is unfair how you group the world into copyright maximalists and minimalists. The extent of copyright (term, fair use) is really a different axis than protection of copyrighted works (e.g., allowing the owner to protect the making of an exact copy for commercial gain). Is your beef with too extensive rights - because we have much in common there - or in enforcement of constrained ones?

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"Give me a property right and i'll fix my house - take it away and the neighbors might decide that we're all better off if they walk across my lawn and peek into my bedroom. The anticopyright movement thinks record company executives are stupid. I assure you - they are not."

Ah, it's the "easily duplicatable ideas equals scarce materia" argument. I can assure you that the "market" don't need exclusivity in order to be able to keep using all of the ideas at the same time.
And by the way, it's not a market - it's a culture of people. Movies and music should be treated as culture that should be free and that you participate in, not as commodities that somebody else makes.
Creativity will not end if exclusivities end, it will rather explode.
We will just not see $100 000 000 dollar Hollywood movies, but millions of movies made by hobbyists and amatuers that do the things they do because they love it.

"Second - the "it follows, therefore it was caused by" fallacy. innovation (by what measure?) was down, so greater IP must be responsible. How about weak economy? How about increased piracy? How about a ton of things we haven't even analyzed."

"COPYRIGHT DOES NOT PROTECT IDEAS. Read Section 102(b) of the copyright act. It protects expression."

Tell that to the Twilight copyright owners. They seem to think they own the names, the concept and anything with a forest, moon and the text "Twilight" on, et cetera.

"the "innovation" criticisms simply don't apply to copyright"

Except that most publisher could stop a book because you have quoted a line of 8 words. 8 words!? How is that not to stop innovation? What if I would come up with those words indepently and at the same time put it in a larger sentence, and have that taken down because of reusing 8 words?
Must everything be unique down to the letter?

"If you want people to spend their days and nights doing analysis, criticism, journalism and making art - then they need a way to get paid."

I guess you have forgotten all those billions examples of people that ARE getting paid without copyrights. It's about the experience, personal value and uniqueness!

Frankly, I've heard a lot more sensible notions on copyright come out of the Pirate Party members.

Granted, they do have some wingnuts (and what political party doesn't?) but I'd rather have copyright as the Pirate Party envisions it - namely, a monopoly granted to the creator of a work (rather than an intermediary such as a publishing or manufacturing company) for a limited time, after which the item under copyright devolves to the public domain - than as the RIAA/MPAA/IFPI/etc. envision it (namely, copyrights are owned by publishers/distributors/etc. and last "forever minus a day").

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you miss the point peter. it isnt a question of "copyright as the Pirate Party envisions it" or anything else, rather it is all about mike masnick very specifically excluding the point that this "guest" poster is in fact a member of the pirate party.

failure to disclose such a simple, basic fact is scary. if mike cant manage to disclose this (and there is plenty of tap dancing around it at the top of the post), then can you imagine what else he just happens to forget to mention in his posts?

it isnt an "oops forgot to mention that", it is a blatant omission so nobody would notice what is going on.

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Interesting that a regular like you, Dark Helmet, did not recognize who the writer is. It makes me wonder if you are just a different type of troll on this forum who doesn't actually read just like ATM.

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Er, troll? I guess I don't get what you mean. Honestly, the time the article posted precluded me from reading it until this morning. Having said that, the name of the author clued me in that something was up, but is there any reasonable excuse for not just being up front with the Pirate Party affiliation?

I'm not disagreeing w/the post, but transparency is important to me....

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Well, I'd call you a troll because having a choice between malice and an honest error, you are siding with our old troll friend TAM. It's not like the information is not findable with one click or the author is anonymous. So yeah, trolololololo! you are here. Or worse yet, you took TAM's bait without thinking, which is quite funny, since it's not a complex one either. Need coffee may be?

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....Honestly, that is kind of fucked up, Mike. Is there a logical explanation? I'm kind of hoping so....

Our policy has ALWAYS been to focus on the content and not disclose political party associations. Seriously. Look back at any post we've done involving any politicians. We don't name their political party, because what party they belong to is rather meaningless.

In this case, the positions stated were interesting, and as per our usual policy we figured it was more important for people to focus on the ideas raised in the post, rather than political party. It's the same reason when we talk about any action by any politician we don't disclose their party.

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but mike, this isnt a case of discussing something that a politician has written, rather you have given her the space to write directly to your readers, without any disclosure. your wording at the top of her post is so careful in its avoidance of her political party / connection.

for me you crossed the line from commentary to outright support, and were too shy to say "she is one of the two members of the pirate party elected to the eu body".

perhaps it would be better if she posted on her own site, and you linked, quoted, and expressed an opinion? it seems like you really crossed a line here and violated the trust with your readers.

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Meh, I guess. Not the way I'd prefer you go about it, but it's your site, your rules. I guess I'll just have to make a practice of Googling the names of guest writers whenever you have them. Content is fine, but background and context is important.

After all, reading an espose on the problems of capitalism would be interesting, but knowing it was written by Karl Marx would be important....

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"Why? So that you can start off with ad hominem attacks instead of working up to them? What changes about the arguments itself if you do or do not know the writer of the opinion?"

Well, and I can't believe I actually have to explain this, but for lots of reasons. Some of which are:

1. Such an article is going to make several statements of fact that I don't have time to research. I have to know that the person stating these things is someone I have a reasonable expectation of honesty from. Knowing the background of that person has a great deal to do with that.

2. Such an article is going to make several statements of opinion and interpretation in a logical manner that may or may not be all or partially accurate. I have to know that the person stating these things is someone I have a reasonable expectation of honesty from. Knowing the background of that person has a great deal to do with that.

3. There may or may not be counterpoints or counter-evidence to the position of the author. It is on the author to determine whether these counters are strong and/or relevant enough to derail his/her position. Knowing the background of the author helps me determine whether I trust his view on potential counterpoints.

I mean....isn't this all REALLY self-evident? What the fuck is this, dick with Dark Helmet day?

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I mean....isn't this all REALLY self-evident? What the fuck is this, dick with Dark Helmet day?

If you don't want it to sting, don't put it in weird places. Or make statements that are just plain silly. You can disagree with Marx because he is a filthy commie, but his works on political economy are still used and re-used by economists from every part of the political spectrum, so obviously his personal opinion had nothing to do with quality of his works. To top it off, your opinion on the background of the person writing an article might not be at all correct, yet you apparently heavily rely on it.

1. So purely because someone belongs to one group or another (RIAA, Pirate Party, Your Mom's Fan Club), the facts will be more or less true? Because you are too lazy/don't care about checking the facts, you will default to your opinion on the provider of these facts to judge them. Critical thinking it's not.

2. Opinions and interpretations are just that and anyone can argue whether they are "accurate" or not. Since, again, you are apparently not willing to understand the logic (or lack thereof) being used, you are simply falling back on your opinion of the person's background.

3. This is the only one of the three points that holds any water. We are talking about an opinion piece that is pretty darned short. Already two factors for why some counterpoints will be omitted. The nature of it being an opinion means that what a critic considers important, the author might not. So those "strong" counters might be omitted on purpose because they are strong, on purpose because they are deemed too weak to bother with or overlooked altogether. Either way, if you are reading the opinion piece for anything other than parroting it later on, your critical reading/thinking skills should help you make up your mind on overall validity of the opinion. Or you can just make up your mind based on the party affiliation and save yourself the glucose for the next round of minesweeper.

Yours and TAM's whining is particularly laughable in the context of this blog, as Mike's own opinion on intellectual property is quite well established. And as TAM will tell you, Mike is "biased" so you can go ahead and assume that anyone he lets post on this blog is also "biased". You already know Mike's background (which is so important for you), so you can draw your conclusions about the posters from that. There, saved you time.

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Meh, I guess. Not the way I'd prefer you go about it, but it's your site, your rules. I guess I'll just have to make a practice of Googling the names of guest writers whenever you have them. Content is fine, but background and context is important.

We made a judgment call on whether or not her party affiliation was important. Since the post wasn't even about specific European politics, it didn't seem that important to me.

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mike, would you be any more comfortable with governor arnold out in your neck of the woods penning a pro-ip piece and declaring it the "american view of ip"? it would be incredibly stupid not to mention his political affiliation, his past work in the entertainment industry, and his current position. all of those things are shockingly relevant to the content of his post.

the post is misleading, your careful decision not to include valuable information about the author is doubly misleading and really shows how far you will go to promote one set of ideals over another, even if you have to sneak it in by the back door and hope nobody notices.

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Maybe that isn't relevant?

Or maybe you could just find that out from a simple Google search and make your own conclusions?

It's an opinion. Her opinion is worth as much as yours (if you believe in a Democarcy). The difference is that she at least tried to make some sort of point, while you just attack people based on their ethnicity or political views or just because you feel like it.

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nope, i wont bite into your stinky troll bait. there is nothing here about her opinion, ethnicity, or anything else. you are trying to paint me as a racist, and that is just wrong. nothing in my posts have anything to do with that.

it is a simple question: why go through all the tap dancing to mention her political status, and then just happen to forget to mention she is the elected member for the pirate party?

there is nothing racist in that. you are attempting to shout me down and distract the discussion. shame on you, shame on mike for paying you to do it.

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let me just add this as a comment, the original description of the author:

Amelia Andersdotter (who is supposed to be a member of the European Parliament, but still technically hasn't been given her seat due to what can only be described as bureaucratic incompetence on a continental scale) has written up a guest post, giving her analysis of why Kenya's move makes little sense

there was plenty of chance in this to mention "oh yeah, for the pirate party", but that most relevant of facts just didnt make the post. mike, do you have something to hide? are you a member of the pirate party? what is your affiliation? is your blog now a political action committee, rather than a tech blog?

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I have to be honest here. Your post and pointed questions seem rather derailing. Her political party has some to do with her position perhaps, but you seem to automatically just disregard her entire post because of a party she is with. You don't take any time at all to actually cover anything she covers. No refuting, no debunking, nothing. All you seem to do is say "she is from the Pirate Party and you didn't point this out, zomg!".
Do you actually have an argument against anything she said? Right now it seems like you don't. You could be like a nice poster would and just say "I would like to add that Amelia is from the Pirate Party in Sweden". Instead you go off into an attack campaign against Mike based on that one fact like it can discredit everything said in the blog.

I may not like everything the Republicans talk about or the Democrats talk about, but I don't automatically disregard everything they say just because of what party they are from. And when I disagree, if I argue with one I actually try to cite facts and use logical arguments rather than just shouting "YOU DIDNT SAY YOU WERE A DEMOCRAT WTF?!".

Conclusion / TLDR:
I give a thank you for pointing out what party she is from, but far more negative points for being an ass about it and using it to launch your attacks.

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you make the mistake of assuming i am ignoring her post, i am not. i have not commented on the post one way or the other. but as dark helmet said "reading an espose on the problems of capitalism would be interesting, but knowing it was written by Karl Marx would be important". the op-ed piece is much more in focus when you understand who the writer is.

the entire point is that mike seems to have intentionally left out possibly the most relevant piece of information in the whole story. that is sad, and something he would ream "the other side" for over and over again.

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"the entire point is that mike seems to have intentionally left out possibly the most irrelevant piece of information in the whole story."

Fixed that for you.

WHO CARES!

The fact the she is a EU politician WAS declared, for which party was easily searchable information, and is honestly irrelevant to the discussion at hand. Either deal with the facts & opinions stated in the article or STFU. If you want the background it is obviously easy to find , so what is the big deal.

Like others have said would it matter if she was (in the US) a Republican or Democrat? NO? Why, well obviously because in the States generally BOTH sides of the system are corrupted and in the pocket of big business.

Just because the Pirate Party (and I have to agrree with Mike, they could have picked a better name) is pro-freedom for the individual rather than big buisness profit margins, it discredits her opinion as a member of that party, is stark bulshit. Deal with the statements she makes not your petty preconceptions.

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"The fact the she is a EU politician WAS declared, for which party was easily searchable information, and is honestly irrelevant to the discussion at hand. " - no, it is incredibly relevant, because she is trying to past her post off as the "european view" when it is nothing more than a party position piece. it should have been put up on their website, and mike could have linked to it and discussed it. instead, he gave her the keys to the techdirt castle, and helped to make sure her party affiliation and position was not revealed.

"ust because the Pirate Party (and I have to agrree with Mike, they could have picked a better name) is pro-freedom for the individual rather than big buisness profit margins" - no, they are anti-ip and pro public domain, which explains entirely the position in the post. it isnt the european view, it is a party view. missing the party affiliation in the post pretty much changes everything.

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Was there a financial interest here that wasn't disclosed? Because that's what the other situation was about. And Mike never complained that Duffy's political party wasn't disclosed, which is what this issue is about.

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It had nothing to do with political affiliation. It was a criticism that Professor Duffy was purportedly invested in an issue where it was believed he was biased, and so he should have provided a disclaimer. Note: The article prepared by Professor Duffy was for the readers of the Patently-O blog, and the readers there were already well aware of Professor Duffy's associations. In fact, not one of them even asked "Why no disclaimer?" becasue none was necessary.

This site, when it became clear that the readers at that blog certainly did not need a disclaimer, then shifted gears and noted that his article on the blog would certainly make the internet rounds well beyond the blog, and that a disclaimer should have been made to inform readers on other sites.

Having criticized Professor Duffy for not making a disclaimer, it does in my view seem inappropriate not to do the same for the author here.

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Financial benefit is the difference. If you can't understand why it's suspicious to be touting a law when you would monetarily benefit from the law, I'm not sure what else to say.

When you try to say it's suspicious for a politician to be touting a law that their party supports... That's sortof what they're expected to do. It makes no difference, none, what party the politician espousing this view belongs to, because despite the 'party line' there are dissenters.

There is no ethical reason to clarify which party you are, you are elected (and thus paid) because of your arguments in and of themselves, so the arguments stand on their own weight, regardless of your party. There is an ethical reason to clarify that you are BEING PAID to espouse a certain opinion, because your arguments are supported by your compensation to espouse them.

This is all very simple.

The reason Mike didn't mention the party is two-fold: 1) He never mentions any politician's party. 2) So there wouldn't be a discussion on the merits or demerits of the Pirate Party, and instead the article would be discussed based on the content of the article.

But of course, de-railers and trolls love to ignore the arguments presented and instead attack the presenter. Thanks for labelling yourself so handily for us.

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Professor Duffy is a law school professor and had no financial dog in the fight, his research was known to all in his immediate audience, and his article was meant to explore the ramifications of some then recent rulings by the USPTO as it would pertain to existing patents for subject matter some might try to pigeonhole as "software".

This has nothing to do with political affiliation. What it does have to do with is informing the reader about the author so that the reader is better able to understand the points being made and the context in which they are being made.

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My recollection from the brief in which Professor Duffy participated (a brief in support of neither party) was that it was prepared by him and others on a pro bono basis, which would be the antithesis of a financial interest in the outcome.

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This leaves two outcomes.

First, Mike is correct and he was hired by the corporation to file a brief, giving Duffy a financial stake in the proceedings and undermining his credibility. Thus Mike is correct in pointing it out, and making this post a non-issue, since Ms. Andersotter is not financially involved.

Second, Mike was incorrect in the Duffy post and he was not hired. This would mean Duffy does not have a financial stake in the proceedings, leading to Mike retracting the last paragraph in that article. Mike was incorrect to point out a financial stake where there is none... And this post remains a non-issue, because as stated above, the author is not financially involved.

So, either way, this post stands unchanged. And you, and all the other (amusedly anonymous) dissenters have wasted many bytes of storage space and caused people to go over their caps. :( Shame!

I agree. Your material shouldn't be copyrighted either.

I agree with Techdirt. Let creativity free.

Do I have permission from Techdirt to copy their articles and put my name on them as my own? I could supplement my meager income a bit by selling them to other rival tech blogs or perhaps just create my own off Techdirt's hard work.

Re: I agree. Your material shouldn't be copyrighted either.

If you searched the history of the site some you will actually find that Mike has said you are free to copy the content all you want. He likes it. You are likely to help advertise this site.
The content can be copied infinitely. He is probably not too fond of the idea of people putting their name on it (what does this have to do with anything anyways?). Sooner or later though they will be shown to be a plagiarist and their reputation will be destroyed while his site here could have only gained more readers. Net benefit for him.

If you think you are somehow making an argument by saying you can put your name on it, the only argument I see is that you don't understand. When people copy music / movies / whatever they don't say that they created the song and then re-release it. They just copy it and listen / watch / whatever. Kind of a large difference there bub.

Re: I agree. Your material shouldn't be copyrighted either.

Do I have permission from Techdirt to copy their articles and put my name on them as my own? I could supplement my meager income a bit by selling them to other rival tech blogs or perhaps just create my own off Techdirt's hard work.

Really? All property law is a construct of the law. It's a bundle of rights granted to you that are respected by government and other citizens. No property - no freedom really because the system devolves to one purely of power.

"intellectual property" is hundreds of years old and the term piracy - as applied to IP - dates to the 17th century.

The law - which respects property rights - has evolved in copyright from at least the Statute of Anne in the 18th Century, through Article I section 8 of the constitution (which calls out intellectual property as a specific power granted to congress), through numerous revisions of copyright and patent law - all of which were deemed important enough to protect.

Freedom at the expense of other's rights is not freedom. Physical property limits your ability to go into your neighbors house and take their stuff. Other laws prevent you from maiming them or driving drunk and putting others at risk. So all laws limit freedom in some fashion, right? So yes, copyright does limit freedom in some sense of the word - as every rigth does. But it protects freedom at the same time - freedom not to have people take what you create without your permission.

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Really? All property law is a construct of the law.

If I am in possession of something, you do not. That is where real property fundamentally derives from, and issues in allocating it efficiently especially in regards to natural resources. Ideas and expressions of them are not scarce. The fact that I may be in "possession" of an idea is not exclusive of you being in "possession" of it.

To conflate copyright law as being the same as other property law continues to be disingenuous. Though I doubt you have the facts nor societies best interest at heart.

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I am at somewhat of a loss to understand the points being made by the article's author. What causes this in significant part is that links are provided in support of general assertions, and yet when the links are reviewed they appear to largely contradict the assertions.

Merely by way of example, the first link is associated with the assertion that "innovation" is decreasing in those industries that depend most upon patents. This suggests that patents are having an untoward effect, and yet the link says no such thing. To the contrary, in regards to pharmacueticals it repeatedly states the view that patents are beneficial and why. There is a logical inconsistency between what the author asserts and what the link says that makes me wonder if an inherent anti-law bias underlies not only this assertion, but all others as well.

Techdirt does have a propensity for presenting provocative articles dealing with the interplay of economics and law. Many are quite intriguing and informative; however, this is most certainly not one of them. It seems to be little more than a partisan puff-piece ripe with assertions and rotted with the glaring omission of substantiation.

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This Preliminary Report confirms the decline of new chemical entities reaching the market and the delays of generic market entry and highlights some of the possible causes.

The report also finds that originator companies have designed and implemented strategies (a "tool-box" of instruments) aimed at ensuring continued revenue streams for their medicines. Although there may be other reasons for delays to generic entry, the successful implementation of these strategies may have the effect of delaying or blocking such entry. The strategies observed include filing for up to 1,300 patents EU-wide in relation to a single medicine (so-called "patent clusters"), engaging in disputes with generic companies leading to nearly 700 cases of reported patent litigation, concluding settlement agreements with generic companies which may delay generic entry and intervening in national procedures for the approval of generic medicines. The additional costs caused by delays to generic entry can be very significant for the public health budgets and ultimately the consumer.

The sector inquiry confirms that generic entry in many instances occurs later than could be expected. For a sample of medicines under investigation which had lost exclusivity in 2000 to 2007 the average time to enter after loss of exclusivity was about seven months on a weighted average basis, whereas also for the most valuable medicines it took about four months. On average, price levels for medicines in the sample that faced loss of exclusivity in the period 2000 – 2007 decreased by almost 20% one year after the first generic entry. However, the decreases in price levels were as high as 80-90% in rare cases for some medicines in some Member States. Based on the sample of medicines under investigation that faced loss of exclusivity in the period 2000 – 2007, representing an aggregate post-expiry expenditure of about € 50 billion over the period (in 17 Member States), the preliminary report estimates that this expenditure would have been about € 14 billion higher without generic entry. However, the savings from generic entry could have been about € 3 billion more, further reducing expenditure for these medicines by more than 5%, if generic entry had taken place without delay. The findings of the inquiry suggest that the practices under investigation contribute to this.

Competition between Originator Companies

The preliminary findings of the inquiry also suggest that originator companies develop and practise defensive patenting strategies primarily in order to block the development of new competing products. This can lead to obstacles to innovation, in form of higher costs for competing pharmaceutical companies (e.g. for royalties), or in delays.

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Next time try reading beyond the Executive Summary, which forms but a very tiny part of the 404 page report, as I did.

It reveals important information, not the least of which is that the pharma industry can be characterized as comprising three distinct sectors: 1) Basic R&D, 2) Converting basic R&D into various useful products for which copious sums of money must be expended, and as to which patents are viewed as a necessary incentive to secure investment to bring new and innovative products to market, and 3) Originator vs. Generic competition as patents expire and exclusivity is lost.

In a very general sense, the author of the article at this site is focused on #3, and appears to equate the introduction of generics as the touchstone to "innovation", i.e., more price competition. She pays short shrift, at least as far as the "title" to the link is concerned, to the most important point of all...it is a tad difficult for a generic alternatives to exist in the first place without #2 having transpired (and it is as to #2 that the importance of patents is repeatedly stated throughout the entirety of the linked study).

Clearly, the article's author falls miserably short in trying to promote her position, in significant part due to the fact that her assertion is a remarkably summary of a multi-faceted industry. She seems more interested in having generic introduction accelarated than in having the original and useful formulation created in the first instance, without which generic introduction would wither on the vine.

Apparently you limited your examination of the liked paper to the Executive Summary, a very top level discussion. The "meat" is in the actual paper, and I did look at all 404 pages before making a comment.

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Assuming that the quicker introduction of generics would harm the creation of new medicines.

There's a good reason it's called a summary - it's a sumarry (shock horror!) of the research as a whole. Are you suggesting the summary is inaccurate and does not represent the rest of the contents?

Though in apparently wanting to bring up the "meat" of the paper, you have not brought up any quotes or sections of the paper that explicitly defy that summary of innovation being slowed.

Here are a few more quotes:

When the patent-related matters resulted in litigation, the claims of the originator companies were upheld in only 2% of the cases, suggesting that the arguments submitted against the generic medicine could not be substantiated. Originator companies had also a low success record in cases concerning data exclusivity. Intervention and litigation by originator companies interfering in administrative proceedings for generic medicines can lead to delays to generic market entry. In relation to a sample that was investigated in depth, it appears that marketing authorisations were granted on average four months later in cases in which an intervention took place. Originator companies believe they have generated significant additional revenues as a result of such practices.

The inquiry's preliminary finding is that originator companies spent on average 23% of their turnover on marketing and promotion activities for their products. As part of their commercial strategies, originator companies do not simply promote their own medicines to doctors and other healthcare professionals. There are also indications of practices seeking to put into question the quality of generic medicines. Finally, there are indications that originator companies attempt to exercise influence over the distribution channel (wholesalers) and supply sources for the active pharmaceutical ingredients needed to produce the medicines in question. Direct-to-pharmacy (DTP) distribution is a new trend in the distribution of medicines. In DTP distribution, the pharmaceutical company sells the medicines directly to the pharmacists. According to some stakeholders, this model could eventually lead to less competition at the wholesale level and possibly render it more difficult for smaller originator companies and generic companies to enter the market.

[...]

The combined use of life cycle instruments may increase the likelihood of delays to generic entry; delays due to the use of several instruments may sometimes be cumulative. More generally, it may significantly increase legal uncertainty to the detriment of generic entry and can cost public health budgets and ultimately consumers significant amounts of money.

[...]

The inquiry finds that originator companies engaged in litigation against other originator companies. The companies reported, in relation to the sample under investigation, for the period 2000 – 2007, a total of 66 cases of patent-related litigation, which concerned 18 different medicines. Litigation was initiated by the patent holder and the originator company allegedly violating the patent in equal proportions. In 64% of the cases, litigation was concluded by means of settlement agreements. The number of cases where a final judgment was reported was relatively low (13 of the 66 cases). The patent holders lost the majority (77%) of cases where final judgments were given.

[...]

The inquiry finds that originator companies engaged in litigation against other originator companies. The companies reported, in relation to the sample under investigation, for the period 2000 – 2007, a total of 66 cases of patent-related litigation, which concerned 18 different medicines. Litigation was initiated by the patent holder and the originator company allegedly violating the patent in equal proportions. In 64% of the cases, litigation was concluded by means of settlement agreements. The number of cases where a final judgment was reported was relatively low (13 of the 66 cases). The patent holders lost the majority (77%) of cases where final judgments were given.

[...]

In a few cases originator companies expressed concern about the patent strategies of a competitor, in particular where they felt that their R&D projects were obstructed by the patent applications of competing originator companies. This is best illustrated by the following submission from an originator company: "[Another originator company] filed several “paper” patent applications related to [our company's molecule]. The only objective was to impede [our company] from developing [our company's molecule], as far as (i) no research laboratory data and/or work exists related to this paper patent applications, and (ii) [the other company] has no right on [our compound] compound, protected by patents owned by [our company] A letter [...] was received by [our company] from [the other company], [...] stating that [the other company] is not ready to achieve any settlement at all regarding the blocking patents."

3.1.2.4. Effect of Divisionals
(974) Six (of 43) companies stated furthermore, that divisional applications by competing originator companies had interfered with some of their R&D projects. Thus one company stated: "Issues, such as the filing of a divisional patent application by another company, may arise and impact on the business case for a R&D project [of our company]." In several cases this has led companies to challenge these divisional applications, once granted in opposition procedures. One originator company, however, pointed out that: "The filing of divisionals before EPO can extend uncertainty for several years." In opposition procedures, in particular, unduly broad claims were challenged. Originator companies felt in general that they should not be accepted.

[...]

Summary
The preliminary findings of the inquiry show that originator companies engaged in so-called "defensive patent strategies". Patents falling into this category were primarily used in order to block the development of a new competing medicine. The sector inquiry also shows that in such cases the originator companies do not intend to pursue these patents in order to bring a new/improved medicine to the market.

[...]

In total, the inquiry reveals at least 1,100 instances across EU Member States where the patents held by an originator company relating to a medicine in the sample investigated might overlap with the R&D programme and/or patents held by another originator company for their medicine. This overlap creates significant potential for originator companies to find their research activities blocked, with detrimental effects on the innovation process.

[...]

The sector inquiry has confirmed that originator companies file secondary and divisional patent applications as a strategy to prevent or delay generic entry and to create uncertainty for generic competitors as to whether they may develop a generic copy without infringing a potential patent.

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This is all interesting, but you miss the point I make.

The assertion was that "innovation" is decreasing in industries that rely most heavily on patents. This is not what the article says. What it does say is that (1) patents are viewed as important incentives to the creation of new chemical formulations in the pharma industry, and (2) patents can present impediments to the rapid deployment of generics as the patents near the end of their terms.

If one considers innovation to be associated with the invention and introduction of new formulations into the market, then certainly patents are viewed in a favorable light. If, however, one views innovation as the introduction of such formulations on a wide scale as generics once the patents are no longer inforce, then perhaps in this instance the generalization made by the author may have some modicum of truth. In my view the author is focused exclusively on the latter without a passing thought as to the former.

As I pointed out, however, there is no generic to introduce if there is no new formulation in the first place.

??

I can't follow these discussions, perhaps because I got here when there were already 77 comments and I filter information away if I don't have time for it (or simply don't want to read it).

It wasn't actually my intention to promote my political party, or my political affiliations. The Kenyan constitution is Kenyan domestic affairs, and I'm not represented there and presumably neither are any people having commented here. Their policies do affect policies in Europe, and the US, though. Our policies also affect them.

What's more is, our policies affect them in a way of counter-acting our policies (collective rights) that is not necessarily good and that may have nasty repercussions here, eventually.

A lot of IPR debates, at least the ones I get in touch with and that I pretentiously believe are quite many, still focus very much on national or regional interests, ACTA being a prime example: will we get three-strikes? Well, the negotiators aren't legally allowed to include that in the treaty, and there are, as far as I have seen, no legal scholars claiming that European legislation will change from the publicised material about ACTA (the legislation in Europe seems to be a lot worse already than anyone is expecting it to be) - Europe has safe-guards, free speech, exceptions in copyright, democratic rights, that to some extent make our restrictive legislation less restrictive. Many other WTO members do not have similar safe-guards. For those nations, ACTA could mean a significant decrease of rights to education or free speech or a free internet.

These things are difficult to do anything about, but in a way Kenyas constitution is very much our constitution as well.

I'm no friend of the EU Database Directive, but this has got to be one of the most most mindless op-ed pieces I've ever read. She writes:

"Most regions in the world where the economic growth is the largest is where the intellectual property protection has been the lowest, or least enforced."

This is a really stupid, irresponsible statement. The claim is probably true – as true as stating that most regions in the world where the economic growth is the largest have the greatest problems with environmental degradation, extreme labor conditions and abuses, and general lack of the rule of law. If that makes the writer want to turn back environmental protection and workplace safety laws, she should keep her policy logic to herself.